[파면처분취소][공2011하,2576]
In a case where a police officer assigned to a national highway maintenance management office under the head of the Regional Construction and Management Administration, who was in charge of over-road control, was removed from office by the head of the Regional Construction and Management Administration on the ground that he received a bribe of KRW 1.9 million on six occasions in return for the notification of the location information, etc. of the movement control team that can avoid over-control by the construction equipment rental business operator and received a request from the construction equipment operator, the case holding that the above disposition was objectively unreasonable and considerably unreasonable under social norms.
In a case where the head of the Regional Construction and Management Administration removed the police assigned for special guard belonging to the National Road Maintenance Management Office under the head of the Regional Construction and Management Administration on the ground that Gap, who was in charge of controlling excessive vehicles, received a bribe of KRW 1,90,000,00 from the construction equipment operator and received a request to inform him of the location information, etc. of the movement control group that may avoid the excessive traffic regulation, and thereby violated his duties and damages his dignity, the case holding that the disposition of the removal of the police assigned for special guard could not be objectively invalidated in light of the characteristics and nature of the removal of the police assigned for special guard and the purpose of disciplinary action, on the ground that the Gap abused his authority and received money in return for notifying the location of the mobile control vehicle so that he could avoid the excessive traffic regulation, and the fair and strict regulation of the police assigned for special guard who perform such control could not be possible if there is no strict disciplinary action, and in light of the status, amount, frequency, methods, etc. of receiving money or valuables from the general public and the employees assigned for special guard.
Article 17(1)2, 3, and (2) of the former Enforcement Decree of the Police Assigned for Special Guard Act (Amended by Presidential Decree No. 2217, Jun. 28, 2010); Article 27 of the Administrative Litigation Act
Plaintiff
Head of Busan Construction Administration
Busan High Court Decision 2010Nu6205 decided June 1, 2011
The judgment below is reversed, and the case is remanded to Busan High Court.
The grounds of appeal are examined.
1. Whether to take a disciplinary measure against a person subject to disciplinary action who is a public official is at the discretion of the person having authority to take the disciplinary measure. Thus, the disciplinary measure is unlawful only when it is recognized that the person having authority to take the disciplinary measure has abused discretionary power, as the exercise of discretionary authority considerably lacks validity under the social norms. Whether a disciplinary measure against a public official has considerably lost validity under the social norms or not should be determined by considering various factors, such as characteristics of duties, the contents and nature of the offense causing the disciplinary measure, the administrative purpose which the person intends to achieve through the disciplinary measure, the criteria for disciplinary action, the amount of money and valuables received, especially in the case of receiving money and valuables, the amount of money and valuables received, the circumstances leading to the receipt, and the time of receipt, and whether the disciplinary measure had an impact on duties after the receipt (see Supreme Court Decision 2008Du6387, Jun. 26, 2008). In addition, it cannot be determined that the disciplinary measure has considerably lost in light of social norms, barring special circumstances such as the reasonableness of disciplinary measure.
2. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s disposition of 1,90,000 won was not rendered on March 25, 2008 by taking into account the following facts: (a) the Plaintiff’s disposal of 10,00 won was carried out to the public interest bank account in the name of the Nonparty, including the Nonparty’s transfer of 30,000 won from the time of 190 won to March 7, 209, by taking into account the following facts: (b) the Plaintiff’s disposal of the 1st century was carried out as well as the fact that the Defendant violated his duty as a police assigned for special guard on May 31, 2010, and the Plaintiff’s management office’s disposal of the 1st place of business, such as the removal of the Plaintiff’s share of 10,000 won by taking account of the fact that the Plaintiff’s disposal of the 1st century was carried out by his or her employees, and thus, did not violate his or her dignity.
3. However, in light of the above legal principles, we cannot accept the judgment of the court below as it is for the following reasons.
The Plaintiff’s duty of regulating excessive vehicles as a police officer assigned to the Busan Regional Land Management Office requires high level of integrity and fairness as one of the basic administrative acts that protect the lives and property of the majority of the public by maintaining the safety and order of national infrastructure, including roads and bridges. However, the instant misconduct is known to the Plaintiff who performs such duty so that it can avoid excessive regulation by abusing his/her authority and receives money in return for such act of receiving money and valuables. If the Plaintiff does not impose strict disciplinary measures on the act of receiving money and valuables, it is difficult to expect fair and strict regulation of the police officer assigned for special guard who performs such duty. In addition, the Plaintiff’s duty of care for special guard who violated the law can be deemed to be unreasonable, and Article 6(1) [Attachment 1] of the Regulations on Disciplinary Measures against Registered Security Guard, which provides for “the grounds for disciplinary action against the Plaintiff’s duty of receiving money and valuables,” and Article 6(1) [Attachment 1] of the same Act provides for “the grounds for disciplinary action against the Defendant’s duty of care for the public or his/her employees.”
Nevertheless, solely based on the circumstances indicated in its holding, the lower court determined that the instant disposition constitutes a case where it deviates from or abused the discretionary power that has been entrusted to the person having authority to take disciplinary action by significantly losing validity under the social norms. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the authority to take disciplinary action, thereby adversely affecting the conclusion of the judgment
4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee In-bok (Presiding Justice)